Baillie v Queensland Parole Board - [2015] QSC 235

SUPREME COURT OF QUEENSLAND

CITATION:

Baillie v Queensland Parole Board [2015] QSC 235

PARTIES:

NICOLA MARIA BAILLIE

(applicant)

v
QUEENSLAND PAROLE BOARD

(respondent)

FILE NO/S:

BS 3301 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

17 August 2015

DELIVERED AT:

Brisbane

HEARING DATE:

10 August 2015

JUDGE:

Douglas J

ORDER:

Application dismissed with costs

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW –
GROUNDS OF REVIEW – IRRELEVANT
CONSIDERATIONS – where the applicant seeks a statutory
order of review of the Parole Board’s decision to refuse

parole – where the applicant was liable to be deported upon release from custody – whether the Board took this fact into account as an irrelevant consideration

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant seeks a statutory order of review of the Parole Board’s decision to refuse parole – where the applicant had not yet completed a substance abuse program – whether the Parole Board exercised a discretionary power in accordance with a rule or policy without regard to the merits

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – OTHER CASES – where the Parole Board was under a statutory duty to decide the application within 180 or 210 days pursuant to s 193(3) of Corrective Services Act 2006 (Qld) – whether the Board should have deferred its decision until the applicant had completed her substance abuse program within custody

Corrective Services Act 2006 (Qld), s 3(1)

Calanca v Queensland Parole Board[2013] QSC 294, cited
Sweeney v Queensland Parole Board[2011] QSC 223, cited

COUNSEL:

The applicant appeared on her own behalf

M J Woodford for the respondent

SOLICITORS:

The applicant appeared on her own behalf

GR Cooper, Crown Solicitor for the respondent

DOUGLAS J: This is an application for a statutory order of review of a decision of the Queensland Parole Board not to grant the applicant a parole order.
Background facts
The applicant was sentenced to eight years imprisonment on 1 April 2014 on a charge of manslaughter. She was sentenced to a concurrent term of three years imprisonment on an associated charge of unlawful wounding. She had served 716 days in presentence custody between 15 April 2012 and 1 April 2014 which were declared to be time served in respect of the sentences imposed on her. The learned sentencing judge fixed her parole eligibility date as 1 December 2014. That does not give a right to release on parole but establishes the earliest date from which she may be granted parole.
Section 3(1) of the Corrective Services Act 2006 (Qld) (“the Act”) sets out the purpose of corrective services as community safety and crime prevention through humane containment, supervision and rehabilitation of offenders. The relevant authorities establish that the respondent has a broad discretion in deciding whether to grant or refuse an application, focussing on the twin purposes of community safety and crime prevention and the three equally important ways of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] QSC 235
Decision Date: 17 August 2015

CaseChat Overview and Summary

In the case of Baillie v Queensland Parole Board, the applicant sought a statutory order of review in relation to a decision made by the Queensland Parole Board. The applicant, who was serving a sentence for criminal offences, argued that the Board had made errors in its consideration of her application for parole, including taking into account irrelevant factors and exercising its discretionary power in accordance with a rule or policy without proper consideration of her merits. The Federal Court was tasked with determining whether the Board's decision was legally sound and whether any grounds for judicial review were established.

The court examined the Board's reasons for its decision, focusing on whether it had taken into account irrelevant considerations and whether it had exercised its discretionary power in accordance with a rule or policy without proper consideration of the applicant's merits. The court noted that the Board had received information regarding the applicant's immigration status and had corresponded with the relevant department as required by the Ministerial Guidelines. However, this information did not feature in the Board's findings on material questions of fact, suggesting that it was not taken into account as an irrelevant consideration. The court also found that the Board's view that the applicant should complete a treatment program before being eligible for release on parole was one it arrived at by considering the facts of that particular case, and that it had regard to the Ministerial Guidelines when reaching its decision, which was appropriate.

The court concluded that the applicant had not established any grounds for intervention. The Board's consideration of the applicant's involvement in a fight was deemed significant in light of her history arising out of the offences for which she was charged and her longer history of problems associated with substance abuse. The Board's view that the applicant should complete a treatment program before being eligible for release on parole was arrived at by considering the facts of that particular case, and the Board had regard to the Ministerial Guidelines when reaching its decision, which was appropriate. Therefore, the application for a statutory order of review was dismissed with costs.

In conclusion, the court found that the Queensland Parole Board's decision to deny the applicant parole was legally sound and that no grounds for judicial review had been established. The application for a statutory order of review was dismissed with costs.

Orders

Orders of the court

Application dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The applicant also relied on the submission that the reliance by the Board on her becoming involved in a fight was unreasonable but did not establish to my satisfaction that its reliance on that issue was so unreasonable that no Board properly constituted could have taken it into account. Indeed, it seemed to me to be a significant matter viewed against the applicant’s history arising out of the offences for which she was charged and her longer history of problems associated with substance abuse.Conclusion Therefore, after hearing the parties as to costs, I order that the application for a statutory order of review be dismissed with costs.

Ratio Decidendi

Legal Principle Established

Those categories at least provided the basis for the submissions made by the respondent and no objection was made by the applicant to those characterisations of her grounds for her application. Immigration status There is no indication in the reasons that the Board took into account the fact that the applicant was liable to be deported upon release from custody. It did say that it had regard to the Ministerial Guidelines in making its decision and cl 5.3 of those guidelines provides:“If a prisoner applying for a parole order is likely to be deported, the Board should be aware that some forms of release may result in the prisoner being immediately taken into immigration custody or removed from Australia. Before making such an order, the Board should ensure that the Department of Immigration and Multicultural Affairs is contacted to confirm its intentions regarding the prisoner’s release.” The Board had received correspondence from the Department of Immigration and Border Protection on 15 August 2010 indicating that the applicant was liable for visa cancellation as a result of her criminal record. That information was also included in a report to the Parole Board dated 24 August 2014. On 1 December 2014, that Department wrote to the Board indicating that the Minister had cancelled the applicant’s visa on 28 November 2014 so that she was to be taken into immigration detention following her release from criminal custody pending her removal from Australia. That information simply reveals that the Board received information concerning her immigration status and corresponded with the relevant department on that issue, as it was required to do in accordance with cl 5.3 of the Ministerial Guidelines. The applicant’s immigration status does not otherwise feature in the findings on material questions of fact in the statement of reasons and does not suggest that the Board took that information into account as an irrelevant consideration related to its decision. This argument does not establish a ground for intervention. Completion of programs as a rule or policy The argument that the Board exercised its discretionary power in accordance with a rule or policy without full and proper consideration of the merits, does not stand up to scrutiny. It is clear that the Board’s view that the applicant should complete a treatment program before being eligible for release on parole was one it arrived at by considering the facts of that particular case; see para 5 of the Board’s reasons. It had regard to the Ministerial Guidelines when reaching its decision, but that was something appropriate. Relevant passages of the Ministerial Guidelines required that care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case and that the Board should give the highest priority to the safety of the community when considering applications for parole. The Board is also required to have regard to all relevant factors, including the prisoner’s progress in addressing recommended rehabilitation programs or interventions; see para 2.1 of the Ministerial Guidelines. In the Parole Board report dated 22 August 2014, the applicant’s longstanding substance abuse problems were identified in the context of the recommendation for her completion of the low intensity substance abuse program before release from custody. That program was not available when the Board received correspondence on 17 September 2014 until a wait list for the course had at least eight participants. It could be undertaken in the community, as the applicant pointed out in her submission of 23 November 2014 to the Board. She said then that she was willing to do programs in the community.

CITATION:	Baillie v Queensland Parole Board [2015] QSC 235
PARTIES:	NICOLA MARIA BAILLIE (applicant) v QUEENSLAND PAROLE BOARD (respondent)
FILE NO/S:	BS 3301 of 2015
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	17 August 2015
DELIVERED AT:	Brisbane
HEARING DATE:	10 August 2015
JUDGE:	Douglas J
ORDER:	Application dismissed with costs
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – IRRELEVANT CONSIDERATIONS – where the applicant seeks a statutory order of review of the Parole Board’s decision to refuse parole – where the applicant was liable to be deported upon release from custody – whether the Board took this fact into account as an irrelevant consideration ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – ERROR OF LAW – where the applicant seeks a statutory order of review of the Parole Board’s decision to refuse parole – where the applicant had not yet completed a substance abuse program – whether the Parole Board exercised a discretionary power in accordance with a rule or policy without regard to the merits ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – OTHER CASES – where the Parole Board was under a statutory duty to decide the application within 180 or 210 days pursuant to s 193(3) of Corrective Services Act 2006 (Qld) – whether the Board should have deferred its decision until the applicant had completed her substance abuse program within custody Corrective Services Act 2006 (Qld), s 3(1) Calanca v Queensland Parole Board[2013] QSC 294, cited Sweeney v Queensland Parole Board[2011] QSC 223, cited
COUNSEL:	The applicant appeared on her own behalf M J Woodford for the respondent
SOLICITORS:	The applicant appeared on her own behalf GR Cooper, Crown Solicitor for the respondent